On Thursday 3 November CAAF will hear oral argument in United States v. Fry, No. 11-0396/MC. The issue presented is:
I. Appellant purportedly enlisted in the Marine Corps after a judicial determination of his incapacity to contract, which remains in effect. Was his enlistment void ab initio?
The appellant was convicted, pursuant to his pleas in accordance with a pre-trial agreement,of fraudulent enlistment, unauthorized absence, and possessing child pornography in violation of Articles 83, 86, and 134, UCMJ. He was sentenced to confinement for four years, total forfeitures, and a bad-conduct discharge. The N-MCCA affirmed the findings and sentence in an unpublished opinion, ruling that:
Congress did not cede determination of the validity of an enlistment contract to a state court’s conclusion as to “capacity” to contract, but rather retained the authority to set its own definition of “capacity” to enlist. We are not persuaded by the argument that a state has the legal authority to limit the right of a citizen to enlist in the armed forces by the creation of a limited conservatorship. United States v. Fry, No. 201000179 (N-M Ct. Crim. App., 27 Jan 2011) at page 5.
We cannot conclude, therefore, that the appellant was legally insane at any pertinent time which would serve to deny this court-martial of jurisdiction. He further satisfied every other requirement set forth in Article 2(b) & (c), UCMJ and therefore had, as a matter of law, the capacity to enter into an enlistment contract. Id. at 7.
The appellant’s brief sets forth a sad history of appellant’s upbringing, many run-ins with law enforcement and social services agencies, and the eventual appointment of a limited conservatorship. This history forms the basis for the appellant’s incapacity to contract and therefore incapacity to enlist. The brief challenges the N-MCCA’s finding that the appellant retained the right to enter into contracts under the conservatorship as an inaccurate interpretation of California law, and cites federal firearms prosecutions for the principle that federal courts should look to state law determinations of capacity.
The government’s brief restates the position that the appellant retained the capacity to contract under state law, but also argues that a state cannot bind the federal government’s authority to enlist under the provisions of Article 2, UCMJ. The government then parses the Article 2 standard (summarized as: enlist voluntarily and have the capacity to understand the significance of the enlistment) to support the position that the appellant had the capacity to enlist, or that his conduct resulted in a constructive enlistment.
In the reply brief, the appellant attacks the government’s position through analysis and interpretation of 10 U.S.C. § 504 and 505, which list disqualifications from enlistment.